DENNIS O'BRIEN, Chief Judge, Bankruptcy
Based upon the Notice of Motion, supporting Memorandum, complete files and argument of counsel,
IT IS HEREBY ORDERED:
1. The Trustee Motion for Sale of Property Free and Clear of Liens, Encumbrances and Other Interests is granted.
2. The Trustee is authorized to sell to Erickson Oil Products, Inc., the Debtor's real and personal property free and clear of any and all liens, encumbrances and other interests located in River Falls, Wisconsin (Debtor's Store #228) and Ellsworth, Wisconsin (Debtor's Store #203) (collectively, the "Option Properties") pursuant to the terms of that ceratin Asset Purchase Agreement dated February 27, 2004, entered into between Erickson Oil Products, Inc. and the Debtor (the "Purchase Agreement"). All liens and security interests shall attach to the proceeds of the sale with the same dignity, priority and extent as held against the assets immediately before the sale.
3. All proceeds ("Gulfstream Proceeds") from the sale of the Debtor's property referred to as Stores 116, 127, 144, 219, 230, 267, 271, 280, 203, 228, 176, 245, 282, and 273 (hereinafter referred to as the "Gulfstream Assets") shall be subject to the first priority lien of Bay View Franchise Mortgage Acceptance Company, Bay View Bank, N.A., Bay View Capital Corporation, Holly Yellen Management, Inc. and Flag Bank (hereinafter collectively referred to as "Gulfstream"). The Gulfstream Proceeds shall be paid by the Trustee to Gulfstream Financial Services, Inc. ("Gulfstream") for application of its claim, including, to the extent there are sufficient Gulfstream Proceeds, post-petition interest, costs, expenses and reasonable attorney's fees within ten (10) days of closing of the Gulfstream Assets. However, the Trustee shall escrow monies received from the sale of the Gulfstream Assets in the amount of the indebtedness owing Gulfstream for the Polka Dot Dairy Stores 128, 193 and 226 until the Trsutee and Gulfstream resolve any disputes or until further Order of this Court. Upon sale of all of the Gulfstream Assets and upon payment in full of all obligations owed to Gulfstream on the Notes relating to the Gulfstream Assets, Gulfstream shall cancel the original Notes relating to the Gulfsgream Asssets and deliver them to the Trustee. No amounts paid to Gulfstream from the sale of the Gulfstream Assets shall be subject to disgorgement or other claims of the Debtor or the estate and Gulfstream shall have no liability or obligation to return or refund any amounts paid to Gulstream once such amounts are received by Gulfstream.
4. The relief granted is in the best interest of the Debtor, its estate, all creditors and other interested parties in this case.
5. The sale of the Option Properties is a good-faith transaction within the meaning of § 363(m) of the Bankruptcy Code.
6. Adequate and sufficient notice to all creditors and interested parties to this case of the proposed entry of the order was given in accordance with Bankruptcy Rule 2002.
7. The Trustee and her representatives are authorized to take such other actions and execute and deliver such additional documents or instruments as will be reasonably necessary to effectuate the transactions contemplated in the Trustee's motion.
8. The Trustee is authorized and directed to sell the Option Properties upon all the terms set forth in the Trustee's motion, this Order, the Purchase Agreement, and any agreement entered into by the parties.